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United States District Court, S.D. New York

August 12, 2005.

FREDERICK MENIFEE, Warden, in his official capacity, Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge


Pro se petitioner Salvatore Lauriola, a federal prisoner sentenced on November 18, 2004 to a prison term of forty-four months and five years of supervised release, has brought this petition pursuant to 28 U.S.C. § 2241 to challenge the policy of the Bureau of Prisons ("BOP"), in existence since December 2002, not to consider prisoners for designation to a community corrections center ("CCC") until the last ten percent of their prison terms, not to exceed six months (the "December 2002 Policy). Prior to December 2002, the BOP considered an inmate eligible for six months of community confinement even if six months constituted more than ten percent of his term of imprisonment. Sanders v. Menifee, No. 04 Civ. 1483 (DLC), 2004 WL 1562734, at *1 (S.D.N.Y. July 13, 2004). Numerous courts, in this district and elsewhere, ruled that the December 2002 Policy, which was issued by the BOP in the form of a memorandum, reflected an erroneous interpretation by the BOP of its own authority under 18 U.S.C. § 3621(b). See Pinto v. Menifee, No. 04 Civ. 5839 (MHD), 2004 WL 3019760, at *4 (collecting authority); id. at *2 (describing the issuance of the 2002 policy). The BOP adopted the December 2002 Policy after it was advised by the U.S. Department of Justice that another provision, 18 U.S.C. § 3624(c), imposed the ten-percent limitation, see Pinto, 2004 WL 3109760, at *4, an interpretation that may well have been erroneous.

New BOP regulations (the "February 2005 Regulations") replaced the December 2002 Policy on February 14, 2005. See 28 C.F.R. §§ 570.20-.21.*fn1 It is these new regulations that petitioner challenges on the ground that they misconstrue the BOP's authority under § 3621(b) because they do not take into account the factors enumerated in the statute.*fn2 The February 2005 Regulations, like the December 2002 Policy, provide that an inmate is only eligible for confinement in a CCC for the last ten percent of his prison term, not to exceed six months. Petitioner argues that the statute requires the BOP to make an individualized determination for every inmate, and that a categorical rule is therefore impermissible.*fn3

  As the Honorable Gerard E. Lynch noted in a recent Opinion considering a similar petition, the February 2005 Regulations "acknowledge the BOP's unlimited discretion to designate prisoners for CCC placement at any point during their sentence under 18 U.S.C. § 3621(b) — thus remedying the interpretation of 18 U.S.C. § 3624(c) as limiting that discretion." Troy v. Apker, No. 05 Civ. 1306 (GEL), 2005 WL 1661101, at *1 (S.D.N.Y. June 30, 2005). Moreover, in formulating the regulations, the BOP considered two of the factors enumerated in § 3621(b), facility resources and the policy statements of the Sentencing Commission, as well as the statute's prohibition of favoritism toward prisoners of high social or economic status. See id. at *2 (citing Community Confinement, 69 Fed. Reg. 51,213, 51,214 (proposed Aug. 18, 2004)). Judge Lynch reasoned that "[b]y implication, the BOP has determined that those factors categorically outweigh any of the other factors in § 3621(b) which might tend toward earlier CCC placement in an individual case." Id. As such, the February 2005 Regulations "are valid because they represent the permissible, categorical exercise of the discretion statutorily granted to the BOP." Id. at *3. This Memorandum Opinion hereby adopts the entirety of Judge Lynch's persuasive reasoning in Troy.

  In support of his contention that the BOP must make an individualized determination taking into account the enumerated factors in determining where to place an inmate, petitioner emphasizes that § 3621(b) contains a directive stating that the BOP "shall designate the place of the prisoner's imprisonment." 18 U.S.C. § 3621(b) (emphasis supplied). It should be noted, however, that the sentence introducing the factors is a "may" construction: "The Bureau may designate any available penal or correctional facility . . . that the Bureau determines to be appropriate and suitable, considering [the factors]." Id.; see also Pinto, 2004 WL 3019760, at *11. Whether or not the February 2005 Regulations represent, as petitioner claims, "a thinly veiled attempt to establish the same result as the [December 2002 Policy]," the BOP has not overstepped its statutory authority. Accordingly, it is hereby

  ORDERED that the petition is denied. The Clerk of Court shall dismiss this petition. Because reasonable jurists have resolved this issue differently, see Troy, 2005 WL 1661101, at *1 (collecting cases), Lauriola is granted a Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).


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